KM, R (On the Application Of) v Northamptonshire County Council (Rev 1)

This is an application for judicial review by a disabled adult to challenge aspects of the policy of the Defendant Northamptonshire County Council (“NCC”) on charging for adult non-accommodation services, called the “Fairer Contributions Policy”. I shall refer to her as K in this judgment. However given her disability I also direct that she must not be named in the title of the case when reported.

I must emphasise at the outset that the Court’s task in these proceedings is to consider the legality of the policy. It is not to act as an assessor calculating the precise level of contribution to be made in respect of the services provided to K by NCC. Although I had particular figures put before me, the issue is not the precision or accuracy of any calculation but the merits of the policy that informs them, insofar as that is a matter for this court to determine. This judgment is directed towards the principles of any assessment, and is not intended to be a determination of any actual assessment. Neither party should consider that because a particular figure appears below, the Court is endorsing it. The purpose of the Court’s discussion of the figures in question is to allow the effect of the arguments to be examined. They were a very useful tool for that purpose.

K, who is 35, has Downs syndrome. She lives at home with her parents, and has severe learning disabilities and other mental health problems. She needs supervision 24 hours a day, and support with all aspects of personal care. She is in receipt of a care package from the local authority, NCC, which includes support for non-residential care services (i.e. she is not in a residential placement). She is currently charged £24.70 p.w. for those services. As to weekly income she receives a total of £178.15 from the Department of Work and Pensions, made up as follows

It follows that her current income is made up as to four ingredients (ESA + DLA + Support Group premium + Disability Income Guarantee). I shall return to their provenance and significance presently.

There was no dispute about the relevant legal principles. By section 17 of the Health and Social Services and Social Security Adjudications Act 1983 (“HASSASSA”) provision is made for local authorities to charge for services of the kind provided for by the Defendant NCC. It reads, so far as is relevant;

“17 Charges for local authority services in England and Wales.

(1)

Subject to subsection (3) below, an authority providing a service to which this section applies may recover such charge (if any) for it as they consider reasonable.

(2)

This section applies to services provided under the following enactments—

(a)

section 29 of the National Assistance Act 1948………….

(b)

– (f) ………………..

(3)

If a person—

(a)

avails himself of a service to which this section applies, and

(b)

satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it,

the authority shall not require him to pay more for it than it appears to them that it is reasonably practicable for him to pay.”

The provision in question by NCC to K is made under section 29 of the 1948 Act, to which I need not refer.

By section 7(1) of the Local Authority Social Services Act 1970

“Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.”

In the well known words of Sedley J (as he then was) in R(Rixon) v Islington LBC [1996] EWHC 399 (Admin) [1997] ELR 66, (1996) 32 BMLR 136, (1997-98) 1 CCL Rep 119

Rixon has sometimes been seen as simply a case on target duties: see for example R (A) v LB Lambeth [2001] EWCA Civ 1624 [2001] 3 FCR 673, (2001) 4 CCL Rep 486, [2002] ACD 18, [2002] 1 FLR 353, (2002) 64 BMLR 88, [2002] Fam Law 179, [2002] HLR 13, [2002] BLGR 163. But one can look to the more recent Court of Appeal authority R (on the application of X) v London Borough of Tower Hamlets [2013] EWCA Civ 904 per Maurice Kay LJ at paragraphs 28, where he endorses the approach of the first instance judge Males J

It is for the court to determine the meaning of the policy, but it is for the decision maker to determine how it is to be applied in a particular case.

Mr Auburn also contends that a policy is unlawful if it is so drafted as to give rise to a risk that unlawful decisions will be made, relying on R (Suppiah) v Home Secretary [2011] EWHC 2 at paragraphs 137-140, and R (Medical Justice) v Home Secretary [2010] EWHC 1925 (Admin) paragraph 39 per Silber J, approved by the Court of Appeal in R (Medical Justice) v Home Secretary [2011] EWCA Civ 1710 paragraphs 25-33.

This case concerns a claim that the policy adopted by NCC does not comply with the guidance of the Secretary of State. The issue between the parties revolved around

It is helpful to say something about those elements within K’s current entitlement, which illustrate the issues in play. I should add that I had almost nothing from the parties at the hearing which set out the statutory provenance of the payments, save for a note from the Claimant about the basis of “premiums.” I have spent a little time excavating the statutory basis for the payments, from the almost impenetrable morass that makes up relevant welfare benefits law. The Court has the right to expect the parties to have done that exercise for themselves. As to the elements listed above:

The way in which the process at issue in this case works is generally along these lines:

Therefore one may express it as follows :

The argument of the parties turned on what is to be included in the protected element (P). It will be observed that, as a matter of ordinary arithmetic, it matters where you place part of the income. If any of the elements paid to a claimant fall within P, then they will be affected by the uplift of 25%. Similarly, if an amount otherwise eligible for inclusion within the protected figure P is removed from the calculation altogether, that too will increase the headroom figure. Thus, to take the two alternatives of inclusion or exclusion with regard to a total income of £ 140 which includes a protected figure of £40, and an element of £ 20 which is eligible for being within the protected figure:

The policy of the Secretary of State states as follows in the paragraphs relevant to the issues before the Court:

“I Introduction.

(5)

Where they do decide to charge for services, councils also retain substantial discretion in the design of charging policy. This guidance sets out a broad framework to help councils ensure that they their charging policies are designed to be fair and to operate consistently with their overall social care objectives. The guidance provides clear objectives which all councils operating charging policies should aim to achieve. The Government’s view is that these are minimum requirements to ensure that charges are reasonable in terms of the HASSASSA Act 1983. In considering what are reasonable charges in their local circumstances, some councils may need to go beyond the minimum requirements in this guidance. Nothing in this guidance requires councils to make existing charging policies, which go beyond the requirements set out here, less generous to users than they are currently.

(17)

as a minimum, users incomes should not be reduced by charges (to) below “basic” levels of Income Support, as defined in this guidance……….plus a buffer of not less than 25%. The 25% buffer is added to each user’s Income Support Allowances and premiums according to age, level of disability and family status………. The buffer provides an additional safeguard to prevent users’ independence of living from being undermined by charging policies.

(18)

It is inconsistent with promoting independent living to assume that all of user’s income above basic levels of Income Support ……is available to be taken in charges………

(20)

As a minimum, “basic “ levels of Income Support…….plus 25% should be taken to include the personal allowances and any premium or additional amount appropriate to the user, according to age, level of disability and family status, but need not include the Severe Disability Premium (SDP) or an amount for severe disability………

(23)

Income should be assessed net of any Income Tax and NI contributions payable and net of housing costs and Council Tax;

(24)

For users who receive other income in addition to ……….. ESA ….., taking them above the basic levels (usually disability-related benefits such as Attendance Allowance (AA), Disability Living Allowance (DLA) or Personal Independence Payments (PIPs) , but also including …….. the support component of ESA for Income Support…….councils may choose; either to exempt such users from charges regardless of their additional income, or to include the user’soverall income within a charge assessment. Where councils choose the latter, the aim should be to ensure that any charge levied does not reduce the user’s net income below basic levels of Income Support ……plus 25%.”

In a section on “ Treatment of Disability Related benefits”, it says this

“VI. Treatment of Disability – Related Benefits.

(32)

As set out in Section 73(14) of the Social Security Contributions Benefits Act 1992…. The mobility component of Disability Capital Living Allowance (DLA) is excluded by law from being taken into account for charges. The mobility component of Personal Independence Payments (PIPs) should also be disregarded. Councils should disregard the War Pensioner’s Mobility Supplement in assessing income, as this should be treated as analogous to DLA/PIP mobility component.

(33)

…………………………………………………………………..

(34)

Disability-Related benefits at issue in this section are the Severe Disability Premium (SDP) of Income Support Attendance Allowance (AA), DLA, PIP, Constant Attendance Allowance (CAA), and Exceptionally Severe Disablement Allowance (ESDA).

(35)

These benefits may be taken into account as part of a user’s income – although it is open to councils not to do this. Where these benefits are taken into account, councils should be guided by the overriding principles that charges:

-

Do not reduce the user’s net income below basic levels of Income Support, plus 25%; and

-

Do not result in the user being left without the means to pay for any other necessary care or support or for other costs arising from their disability.

(36)

This aim is best achieved through charge assessments, which assess both the resources and expenditure of the user. Expenditure should include any Disability-Related expenditure. Councils are expected to assess and allow for Disability-Related expenditure specifically for all users whose Disability- Related benefits are taken into account as income. Councils should also consider and specifically consult users on any need to do this for other users, who may have Disability-Related expenditure.

(37)

Some councils may choose to disregard a standard element of disability benefits for all users receiving these. In these cases any assessment of resources and expenditure should include an assessment of whether the individual users Disability-Related expenditure exceeds the level of the disregard.”

NCC then published its policy, which includes the following:

“2.

Policy Statement

2.1

This policy should be read in conjunction with the NCC Personalisation policy and guidance national guidance published by the Department of Health; Fairer Charging Policies for Home Care and other non-residential Social Services, June 2013 (the relevant policy of the Secretary of State) and Fairer Contributions Guidance 2010: Calculating an individual’s contribution to their personal budget. Nov 2010.

2.2

Northamptonshire County Council’s Adult Care Services directorate has got the discretionary power to charge for certain types of social care provisions. This policy is based on the principles of Fairer Charging as set out by Government and will remain in place until such time as the Department of Health issues further guidance on Self Directed Support and Charging, at which point this policy will be reviewed and amended to reflect National guidance.

2.3

The level of the contribution that individuals will be asked to make towards their care will be calculated by means of a single financial assessment, which is initiated at the point of an assessment of needs. The amount to contribute will be the assessed contribution or the value of the care provided, whichever is lower.

2.4

The overarching principle of this policy will be the need to promote independence while ensuring that people are safe and that risks are managed effectively.

5.

Principles of the Policy.

5.1

Fairness: The policy will be applied consistently to all adults receiving services, regardless of how they are getting those services, so that everyone is treated fairly and equitably. For those who are not eligible for services we will offer sign posting and advice and information.

5.2

Ability to Pay: Everyone will be asked to contribute towards the cost of their social care based on their ability to pay (their personal means) rather than on the cost of their services alone. In support of this principle, everyone will be offered a comprehensive financial assessment of their individual circumstances and be left with a basic level of protected income, as set out in Government guidance.

5.3

Affordability: No one will be asked to contribute more than is reasonable. Depending on their situation, some people will not have to contribute anything.

5.4

Maximising Benefits Entitlement: To ensure everyone is receiving all the welfare benefits to which they are entitled and are not missing out, everyone will be offered a welfare benefits check as part of their financial assessment.

5.5

Transparency and Clarity: The policy will be set out in a clear and straight forward way so that everyone can understand how their contributions (if any) have been calculated, will know what their contributions might be at an early stage, and be able to judge whether or not the policy has been applied correctly in their individual case.

5.6

Empowerment: The policy supports the overarching goal of the council to support people to have more choice in control over their resources and the way these are utilised, so that they are able to live their lives the way they want and feel included in their community.

5.7

Proportionality: The charges will be based on the actual cost of the service to the council and you will only be asked to contribute towards the value of your own care.

5.8

Compliance with Statutory Duties: The policy will be developed and applied in a way that is fully consistence with legislation and the requirements set out in guidance on fairer contributions.

6.3

Protected Income;

6.3.1

The financial assessment will calculate a contribution based upon an individual’s maximum chargeable income. In all cases a “buffer” of Income Support/Pension Guaranteed Credit plus 25% and any other Disability-Related costs will be maintained and will not be included within the maximum disposable income figure.

6.3.2

The “buffer” amount is in place to ensure a level of financial protection, independence and well being following the deduction of any contributions.

6.5

Disability Related Expenditure (DRE)

6.5.1

The current Department of Health Guidelines on Charging for Non-Residential Services, specify that if we take into account someone’s disability benefits when calculating contributions, we need to take a proportionate allowance for reasonable expenses that the person incurs as a result of their disability, in order to allow them to maintain independence and dignity.

6.5.2

If someone receives either Attendance Allowance, Personal Independence Payment or Disability Living Allowance Care Component, they will be offered an assessment of their Disability-Related expenses so that disregards can be applied in relation to certain items as per national guidance and regulations.

6.8

Calculating the Level of Contribution

6.8.1

An individual’s level of contribution will be calculated using the service user’s income and capital to calculate their maximum chargeable income. The calculation will consider:

- The amount of weekly assessable income, minus

- The weekly allowance/disregards

= maximum chargeable income

Example:

Someone aged over 60 has a total accessible income of £260 per week but has capital below £23,250

Allowable costs of £19.23 per week (due to disability expenses)

Personal allowance for accessible purposes of £155.06 per week (basic income support plus 25%)

Example calculation:

Total accessible income £260

- Allowable costs £19.23

= A NET DISPOSABLE INCOME £240.77

- Less Personal Allowance £155.06

= Maximum weekly chargeable income £85.71

…..

7.

Monitoring, Reviews, Reassessment

7,1 A financial reassessment will be completed by the Financial Assessment Team under the following circumstances:

•

Yearly, as part of an ongoing re-assessment schedule.

•

At the request of the customer, if any of their circumstances have changed.

•

When all welfare benefits claimed during the original assessment are in payment and notification has been received.

•

If the capital is reduced to threshold level.

•

If an error or omission has occurred in the original assessment (as per 6.9.3)”

(in fact there is no paragraph 6.9.3 in the document).

Mr Auburn argues that the effect of paragraphs 17 and 20 of the Secretary of State’s guidance is that in K’s case the basic level of Income Support (i.e. P in the formula above) consists here of the basic level ESA, plus the support premium, plus the disability income guarantee, plus 25% of their sum. He says that they fall within the description given in the DOH guidance. Looking at the current figures, that would mean that of her income, three elements are included in the basic income support figure as per paragraph 20

To that total of £123.70, one would add a 25% uplift, making £154.63 in all. Based on her income of £178.15, that produces a headroom of a maximum of £23.52. I say maximum, because if any part of the income of £ 178.15 includes the mobility component of DLA, that is to be excluded from all parts of the calculation. It was not stated on the papers whether in this case it did or not. Further, the court was not informed if there was any disability related expenditure to be deducted (the E element).

It is argued for the Claimant that the new policy is most unclear, but insofar as it is, it will produce the following result

In the worked example in the NCC policy, the maximum figure for a contribution is the headroom between what is described as the “personal allowance” and the assessed income, once the allowable costs have been allowed for. It is said by Mr Auburn for K that

The Defendant argues that the claim is premature, and should have awaited an assessment. NCC calculates that the total income is £ 178.15, calculated as follows

However it then says that one should deduct the EDP, leaving £ 162.60 as the income (this is the item called Disability Income Guarantee in the Claimant’s calculation). It argued that it did not matter whether one included it in the total assessed income, or within the protected income- the “double counting” argument referred to by HH Judge Cook when granting permission.

It then says that under its policy individuals are entitled to an amount of Income Support (plus appropriate Income Support premiums) plus 25%. It says that that is, in K’s case:

That produces £ 130.31 as the total of “ income support plus 25% allowed as protected income” for financial assessment purposes (per the Summary Grounds of Resisting the Claim). It is thus contended that the maximum contribution should be (£ 162.60 less £130.31) , or £ 32.29.

It follows that the differences between the parties on the figures are:

That to my mind bears out the central problem with the NCC policy. There is nothing in it which explains how the “personal allowance” is calculated. The document is simply silent on the issue. Mr McGuire says that the national guidance is to be read alongside the NCC policy. But that will not tell the reader (whether a well informed one or a less well read but deserving disabled claimant) whether it has included (for example) any premium or the SDP (severe disability premium).

The use of the lower £ 31.75 figure has no justification within the policy, and when the court asked what its provenance was, the court was told that it was a “general figure.”

As to the support premium, I accept the Claimant’s argument that the DOH policy requires one to look at what is paid, and not at some other “general figure.” As set out above, the figure used by the Claimant is the one which appears in the Regulations. As I have noted, this argument by NCC lends considerable weight to the point taken by Mr Auburn about the lack of clarity. But I also consider that the approach is in obvious conflict with the policy.

As to the EDP, the choice for the Council under paragraphs 24 and 35 was either to exempt K from all charges, or to take them into account in the assessment, but to ensure that charges do not take her income below the “basic level of income support” as defined. In my judgment, one can only make sense of paragraph 24 of the DOH guidance if one reads it alongside paragraph 20. Paragraph 20 includes within the protected figure (P) “any premium or additional amount appropriate to the user, according to age, level of disability of family status, but need not include the Severe Disability Premium (SDP) or an amount for severe disability.” But as already observed, the SDP is set at a much higher level, and is distinguished in the Regulations from the EDP. Paragraph 20 refers one to Part VI, so it is also apposite to refer to paragraph 34 of the Secretary of State’s guidance. The disability related benefits referred to there (which can be excluded- see paragraph 35) do not include the EDP.

Now it may be (without giving any encouragement to that view) that NCC does have a reason why it considers that this figure should be excluded, either from the assessment altogether, or from the protected element P. But there is simply nothing in its published policy which gives any indication at all of how the “personal allowance” is calculated. As written it is in conflict with the policy, but even on the most generous interpretation, the NCC policy is entirely unclear.

For completeness I should add that the double counting argument- i.e. that it does not matter whether one excludes it from the overall assessment, or includes it in the assessment and in the protected figure - is untenable. I have already set out in simple arithmetical form why both parts of that argument are misconceived. If the figure should be included in the overall assessment, it makes a significant difference whether one includes it in the protected figure.

Mr McGuire QC sought to persuade me that

Interestingly, if the Claimant is correct, the maximum contribution can be calculated (subject of course to the calculation of any expenditure E in the formula set out above). Against her total income of £ 178.15 (which may also be a maximum because of the DLA mobility component question), the protected income is (ESA + Support Premium + Enhanced Disability Premium)(1.25) = £ 154.63. That leaves headroom of a maximum of £23.52. Subject to the assessment of any disability related expenditure, that is very close to her current contribution of £ 24.70.

The Defendant NCC’s calculated figure (albeit using the erroneous £ 31.75 figure) is that the protected income is (including the 25% uplift) £ 130.31. If one uses the right support figure of £ 35.75 instead, it would come to £135.19. NCC takes an overall income of £ 162.60, because it excludes the EDP from all parts of the calculation. It follows that the maximum contribution on the NCC case is (£ 162.60 - £130.31) = £32.29 or if one took the actual premium, would be (£162.60- £135.19) = £27.41. The latter is closer to the current contribution (again subject to the expenditure question).

Thus the current method used by NCC in what it perceives to be pursuance of its policy adds about one third to the current level of contribution. Had the effect of the differences been to leave K with much the same level of contribution, I might have considered not exercising my discretion in favour of the grant of relief.

But I am not sitting as a Tribunal determining the appropriate level of payments or contributions, but as a Judge of the Administrative Court determining whether a policy is lawful. It may be that in K’s case, the difference is a slender one on one way of looking at the case. But the point that is made on her behalf about the policy may affect large numbers of others, whose contributions are also being exaggerated through NCC’s failure to apply the National Guidance or to make its policy sufficiently clear.

This claim therefore succeeds. I will hear counsel on the nature of the relief.